22 May 2009

I'm not holding my breath.

California will announce its decision on the constitutionality of Prop 8 on Tuesday, noon CST. Frankly, I'm not optimistic. 
There are some really interesting speculations of what the riot barrier deployments mean, what the Tuesday unveil means, that sort of thing, elsewhere on the innertoobs. It may be terribly relevant, or not. I dunno. I'm just going to focus on the law and the court itself. 
The law is conservative. Courts, even more conservative. Really, really conservative. In the judiciary, a conservative will unblinkingly analyze current social and medical issues in the context of what was normative to conservative jurists two, three centuries ago. A person who, in any other context, would be viewed as "middle-of-the-road" is invariably referred to as "liberal" judge. A genuinely liberal judge is a fucking unicorn, folks.
Courts are not populated with crusading leaders. Courts are populated by academics and the politically connected who have somehow never pissed anyone off. Judges didn't end up involved in the last big civil rights movement by choice, it was by default when the progressive public forced the issue into the courts because the legislatures were unresponsive. Lawyers and judges now take a lot of pride now about what happened then — but that ignores how little the judiciary did for a century or two previously. Racial equality wasn't a judge's fight because judges weren't black. Likewise, judges didn't (don't?) deal with women's issues with any sense of urgency because judges are still mostly male. In short, when they don't have a dog in the fight, social justice issues just ain't what most judges are willing to risk their nice respectable career over. 
I had an awesome professor — a real renaissance woman — who used to routinely say that lawyers are smart, but lazy thinkers. Nothing says "I'm not a big fan of thinking" like the argument, "Uh, we've just always done it this way." This argument is so embarrassingly lame, lawyers had to hide it under Latin so junior high students wouldn't laugh: stare decisis
Obviously, following precedent has its place in terms of not reinventing the wheel in every case; particularly where the original decision was on-point, well-reasoned, of relatively recent vintage, and made by a similarly situated court. When an issue decided the prior year is revisited by the same court, the reasoning underlying any holding should be revisited, even if the holding answers a new question. This is precisely the situation that SCOCA faced with the Prop 8 case.
So, while stare decisis is generally the enemy of progressive social justice cases, in this instance it may be the saving grace of marriage equality in California. Last year, the California Supremes arrived at a decision on the topic by reasoning:
...the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.
So I suppose there's a glimmer of hope.

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